Little Falls transcript. [volume] (Little Falls, Morrison County, Minn.) 1876-1894, 1887-08-12


IsIJPRENfE COURT.
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Respond dent.
sYLLAB Us. S.ss5
a summons in d civil ction may BE
subscribed by printed signatures 81 the
plaintiff Or Ills attorney loyerrulina
Ames vs.: schurneier, 8 Vim. 22l.) \
Real estate sold il execution OF !
statutory poWe should be described1
with sufficient certainty to enable al
parties who are invited by the notice Il
attend and Bio, to Identify the property,
aud know what il being sold.
While evidence Of ex trinsic facts and
circumstances are admissible to apply
the description Or identify the premises
sold yet al Inherently insufficient de:
scription in i sale on execution cannot
be helped out. by evidence Of facts tend
ing to show what property the officer
probably Intended to sell. Judgnea,
modified. VI .5555 ...5. 1. &.
8. OPINIO J,
This is ii, action Is lctermino -ss,lvefse
claims to real estate Both parties claim
through the Little Falls Manufacturing
company % common source Of title.
h Plaintiff Chains title, First: 70 certain
|;tracts under an execution sale made
|2Jnly 18th, 1869, on two judgments,
known as the {. Herritk Judgments ss5
/ Second: To tracts Under an execution
sale made April 26tl,, 1871, on the prior
Herrick Judgment, and two others,
known as the Hidden Judgments !
Third: To still other tracts under an
execution,sal made July 18th, 1874, on
the prior Herrick judgements.
Fourth; TO still further tracts on an
execution sale made June 25th, 1875, on
this 50 me Judgment. Sd.
The defendant claims title under a
deed from the Little Falls sManufactur-
ing Company to Arthur Eustis, executed
July 18th, 1882, and certain mesne con-
veyances from Eustis to defendant II
The court below found against the
plaintiff upon all four of these execn.
ton sales. The grounds upon which the
court held invalid the title under the ex-
ecution sale Of July 2Sth, 1869, we're. Il
First: That the Herrick judgments
(which were rendered ON .lefault) were
void because tile summons in the action
were not subscribed by. the plaintiff o,
his attorney. s.: &. ',= IF. i
Second: That the certificate OF sale
did not describe: the real estate sold
with sufficient certainty. 2s>;.$ Y. q "a.
Third: That the certificate Of sale was
not executed or acknowledged by the
sheriff of Morrison county. s ,,-...: s5 s5a
We shall consider these three lnitheir
order. The summons in the two Her
rick actions had the printed, but not
the written names Of the plaintiffs at
torney affixed, and the court below fer
that reason held the judo lnents void,
upon the supposed authority ofAmes
VS.. Schumacher, 8 Mimi 22l, Even If
the decision in this case is to b. adhered
to it does not follow That the judgments
are void, or that they can be thus collat-
orally attacked by the parties to these
actions or their privies. Being domestic
judgments of q court of common law
jurisdiction, from which an appeal would
lie they would be valid MS between the
parties until reversed, Notwithstanding
these defects in the summons. Free
man on Judgments, Sec. 1926. Hendrick
VS.. Whitman, l05 Mass %. ..:t.:#
I The summons, at most, would be
merely voidab]e and the defects could
only be taken advantage of directly in
the actions themselves, and could not be
made the ground of a collateral attack
on the judgments by the parties, or
those in priority with them. We haze
no hesitation, however, in saying that
the decision in Ames VS.. Schumacher was
erroneous, and should not be followed.
In fact, twas long since virtually over
ruled by.Hotchkiss vs. Cutting a Mimi.
$50, $50 s. s=z.
In the first case, this court held that
the summons must have the name Of
the plaintiff or his attorney attached III
his own proper hand writing. In the
latter case It was held that . written sig
nature, purporting to be that Of the
plaintiff in the action, but made by his
agent lin his presence, and by his Eek
press direction. was sufici ent. This
does away with necessity Of the sigma
.ture II the proper hand writing Of the
party or his attorney. and it logically
follows that there need be no written
signature at all that any signature,
whether written printed Or Autograph
ed which the party issuing the summo ns
may adopt as his own will be sufficient.
Any Of thase will accompl ish the desired
purpose and give the defendant all the
necessary information. There is no
mid die ground The statute either re-
3quires the signature to- be the proper
handwriting Of the plaintiff Or hisattor-
ney or it may be complied with by at-
taching any ofs tho other forms Of sub.
sscription Suggested The decision il
sAmes ". schurrneir seems to have been
made upon the erroneous assumption
that subscribed & meant q written sig
nature, and that the statute defining
the nlsaning Of the words I; written sig
nature applied II the construct tom y
the statute equiring the summons Is be
.ssubscrib b Barnand IS Heydrick 70
Barb. 81 NJ lltual Life ms. Co. vs., Rose